In re Fletcher

3 Wn.3d 356

[No. 101144-0. En Banc.]

Argued May 18, 2023.

Decided July 18, 2024.

In the Matter of the Personal Restraint of Olajide Adel Fletcher, Petitioner.

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Gordon McCloud, J., delivered the opinion of the court, in which Johnson, Owens, and Montoya-Lewis, JJ., and Rumbaugh, J. Pro Tem., concurred. Stephens, J., filed a dissenting opinion, in which Madsen, J., concurred. González, C.J., filed an opinion concurring in the dissent, in which Yu, J., concurred. Whitener, J., did not participate in the disposition of this case.

Nature of Action: A convicted offender who entered an Alford / Newton plea in 2016 (i.e., a plea without an admission of guilt, North Carolina v. Alford, 400 U.S. 25 (1970), State v. Newton, 87 Wn.2d 363 (1976)) and stipulated to an exceptional sentence above the standard range sought relief from personal restraint in 2022, arguing that the sentencing court incorrectly calculated his offender score by

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including two prior juvenile adjudications that had washed out, thus rendering his 120-month exceptional sentence unlawful.

Supreme Court: Holding that (1) the personal restraint petition was exempt from the one-year time bar of RCW 10.73.090 because the petitioner’s judgment and sentence was invalid on its face and (2) the facial error was a fundamental defect that inherently resulted in a complete miscarriage of justice, the court grants the petition and remands the case to the trial court for resentencing using the correct offender score and standard range.

Jeffrey E. Ellis (of Law Office of Alsept & Ellis), for petitioner.

Kevin J. McCrae, Prosecuting Attorney, for respondent.

¶1 Gordon McCloud, J. — When the trial court calculated Olajide Adel Fletcher’s sentence, it erroneously included two prior juvenile adjudications in his offender score. As a result, Fletcher’s offender score was higher than it should have been, his standard sentence range was much higher than it should have been, and the trial court did not know how much of a departure above the high end of that range it really imposed. All of these errors are clear from the face of the felony judgment and sentence (J&S).

¶2 The superior court therefore granted Fletcher’s postconviction motion for a new sentencing hearing based on correct calculations—despite the fact that it was filed after the usual one-year deadline for seeking such relief had elapsed. The trial court relied on RCW 10.73.090, which

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states that the usual one-year deadline applies only to claims where the "the judgment and sentence is valid on its face"—not to claims like Fletcher’s where the J&S is riddled with critical errors and therefore invalid on its face. The trial court then imposed a far lower sentence, which has now resulted in Fletcher’s release from prison.

¶3 The Court of Appeals, however, reversed and remanded to the trial court to reimpose the original sentence, with the original, erroneous, calculations. It agreed with the trial court that the J&S was invalid on its face and hence exempt from the one-year time bar. It reversed the trial court for a different reason: it ruled that Fletcher’s postconviction motion violated a different procedural rule (the bar on filing second or successor postconviction motions in certain circumstances). We denied review.

¶4 But these issues are squarely in front of us now, in Fletcher’s third postconviction motion, which was filed directly in our court. This current personal restraint petition (PRP) is timely, because the J&S’s serious sentence calculation errors make it invalid on its face. This is true regardless of whether Fletcher stipulated to an exceptional sentence. The trial court, not the parties, is responsible for deciding whether to impose an exceptional sentence, and the trial court is responsible for deciding the extent of any departure from the standard range that it chooses. The original sentencing court could not possibly do that in a fair, statutorily authorized, or reliable way given the extreme miscalculation of Fletcher’s offender score and standard sentence range. The fact that both the parties and the sentencing court all made the same calculation errors does not make his facially erroneous J&S "valid." Moreover, under the circumstances presented here, Fletcher’s facially invalid J&S has resulted in a complete miscarriage of justice.

¶5 We grant the PRP and remand to the trial court to resentence Fletcher using the accurate offender score and standard sentence range.

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FACTUAL AND PROCEDURAL HISTORY

I. Fletcher pleaded guilty and stipulated to an exceptional sentence above the standard range

¶6 In November 2015, Fletcher went with his girlfriend to retrieve his television from Alex Tauveve, and, after a dispute, Fletcher shot Tauveve in the legs five times. Clerk’s Papers (CP) at 4, 7-8.¹ The State charged Fletcher with assault in the first degree in Grant County, Washington. Id. at 1 (information).

¶7 After plea negotiations, the prosecutor amended the charges to assault in the second degree with a firearm enhancement and unlawful possession of a firearm in the first degree. Id. at 118-19.

¶8 In exchange for Fletcher’s plea to the amended charges, the prosecutor recommended an exceptional sentence of a total of 10 years of confinement (120 months), the statutory maximum for both crimes. Id. at 14. The prosecutor also agreed to refrain from filing any more charges against Fletcher for the incident and to refrain from charging Fletcher’s girlfriend. Id. This summarizes the prosecutor’s recommendation:

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Crime	Offender Score	Standard range in months	Enhancement in months	Prosecutor’s recommendation in months
Unlawful possession of a firearm in the first degree2	5	41-54	41, to run concurrently
Second degree assault with a deadly weapon3	8	53-70	36, to run consecutively	84 (exceptional)
+ 36 (enhancement)
= 120

¶9 Fletcher’s plea agreement shows that the parties agreed to an Alford/Newton⁴ plea (a plea without admission of guilt) and a stipulated exceptional sentence. Id. at 10-21. In lieu of admitting guilt, Fletcher stated:

Instead of making a statement, I agree that the court may review the police reports and/or a statement of probable cause supplied by the prosecution to establish a factual basis for the plea. I further agree there are substantial and compelling reasons for an exceptional sentence in this case.

Id. at 19. This guilty plea did not list the "substantial and compelling reasons" supporting an exceptional sentence. RCW 9.94A.535. And it did not require Fletcher to agree with the prosecutor’s recommendation.

¶10 Nevertheless, at the sentencing hearing, defense counsel did agree with the prosecutor’s recommendation. Verbatim Rep. of Proc. (VRP) (Feb. 23, 2016) at 14. The sentencing court did, also; it sentenced Fletcher to 120 months of total confinement on the second degree assault count, concurrent with 41 months of confinement on the first degree unlawful possession of a firearm count. Id. at 15; CP at 26 (J&S).

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II. Fletcher filed an arguably belated, second CrR 7.8 motion; the superior court retained it for decision on the merits after determining that the J&S was facially invalid

¶11 In 2016, Fletcher filed a pro se CrR 7.8 motion; the superior court transferred it to the Court of Appeals for treatment as a PRP, and the Court of Appeals dismissed.⁵

¶12 In 2019, more than three years after his J&S became final, Fletcher filed another CrR 7.8 motion. CP at 58. In this motion, he argued pro se that his J&S was invalid on its face because his offender score and standard range were too high; he sought a resentencing hearing. Id. at 59-67, 85-86.

¶13 His argument about his offender score and standard range was correct: the trial court counted two prior juvenile adjudications for attempted second degree assault that should have "washed out,"⁶ and they made his offender score and standard range for both current crimes higher than they should have been. The magnitude of this error was significant; once the washed out juvenile adjudications were removed from Fletcher’s offender score, the top of the

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standard range for assault dropped from 70 months (nearly six years) to 20 months (less than two years). Id. at 25, 562.

¶14 The superior court determined that Fletcher had shown good cause for failing to raise the new ground in his first CrR 7.8 motion. Id. at 163. The superior court appointed counsel and scheduled a hearing on this second CrR 7.8 motion. Id. at 163-64.

¶15 The State conceded that Fletcher’s offender score was miscalculated due to inclusion of the prior washed out juvenile convictions. Id. at 165. But the State argued that this error did not invalidate his J&S because Fletcher stipulated to an exceptional sentence of the statutory maximum (120 months), so the offender score and standard range were essentially irrelevant. Id. at 166-67.

¶16 The superior court issued a thorough written ruling, determining that the J&S was invalid on its face because the offender score and standard range were improperly high; thus, Fletcher’s motion was timely. Id. at 231-39.

¶17 The superior court then ruled that Fletcher was entitled to resentencing. Id. at 475. It determined that Fletcher was prejudiced by the original sentencing court’s reliance on an incorrect offender score and standard range. Id. Additionally, the court ruled that Fletcher cannot withdraw his stipulation about the availability of an exceptional sentence. Id.

III. The superior court resentenced Fletcher, the Court of Appeals reversed, and our court denied review of that Court of Appeals decision

¶18 At the resentencing hearing, the State asked the court to sentence Fletcher to the same 120-month sentence that he had received before. VRP (July 16, 2020) at 129. Fletcher requested a lower sentence, explaining that he had taken significant steps toward rehabilitation and that he had two children who were "growing up without [him]." Id. at 132-33.

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